EPLAW PATENT BLOG

DE – Are Patents merely “Paper Tigers”?

Patents, whose legal validity is assumed generally and particularly in infringement proceedings, are in fact subject to a considerable risk of being declared invalid in Germany. The present contribution confirms this based on a statistical evaluation of the case law of the German Federal Patent Court and the German Federal Court of Justice in nullity matters in the period from 2010 to 2013.

The identified facts and figures can be summarized as follows:

The invalidation rate of all Senates of the German Federal Patent Court is 79.08% in total.

The invalidation rate of the German Federal Patent Court regarding the S/T patents which are (currently) of particular relevance from an economic point of view is even 88.11%.

The invalidation rate of the German Federal Court of Justice regarding confirming judgments is 75.25%

The invalidation rate of the German Federal Court of Justice regarding amending judgments is 80.56%.

The invalidation rate of the German Federal Court of Justice regarding confirming judgments concerning S/T patents is 79.41%.

The invalidation rate of the German Federal Court of Justice regarding amending judgments concerning S/T patents is 73.34%.

The German Federal Court of Justice has confirmed approx. 60 % of the judgments of the German Federal Patent Court and has amended approx. 40 % of the judgments of the German Federal Patent Court.

About 2/3 of the amending judgments of the German Federal Patent Court are in favor of the patent proprietor.

The main ground for invalidations by the German Federal Patent Court is lack of patentability in 75% of the cases, followed by “Miscellaneous” with almost 12%, inadmissible extension with almost 11% and lacking enablement with approx. 2%.

A significant difference in the invalidation rate of German patents as com-pared to the invalidation rate of German parts of European patents is not established; in fact, the rates are nearly identical.

One Response

From my point of view, the outcome is not surprising at all. Patents are in much more cases held valid, that this report suggests.
But being more tha a “paper tiger” doesn’t require in any case a decision of the courts.
If someone pays royalties for the use of a patent, one may assume that he – at least on a superficial basis – assessed the validity of the patent. Paying royalties for a patent without challenging its validity, means nothing else than that the patent is valid and respected. A case that happens very often and all the time.
Next example: In a situation where s.o. is sued for patent infringement, he will carefully assess the chances of the possible outcome of a nullity proceeding. This is even more true when you take into account that the court fees in nullity proceedings as well as the reimbursable lawyer’s and patent attorneys fees are very high. So: Every person filing a nullity suit has carefully assessed the situation and has come to the conclusion that there are high chances to invalidate this very patent. Otherwise he wouldn’t not initiate costly nullity proceedings.
Having this in mind, the figures shown in the report are not surprising at all. They reflect that German lawyers and patent attorneys do in a propper manner their job. Not more, not less. German patents and/or the German part of a European Bundle Patent are far more than paper tigers.